Carrie Lam’s political argument that there is no “separation of powers” in the Hong Kong’s executive-led political system causes further damage to the reputation of Hong Kong as a city governed by the rule of law. Subsequently, the Secretary for Justice wrote in support of this view stating, “The executive authorities, the legislature and the judiciary perform their respective functions under the executive-led system in accordance with the Basic Law…” Separation of powers is a fundamental element of the rule of law. The claim made by the Hong Kong leadership that there is no separation of powers in Hong Kong implies Hong Kong is no longer a city governed by the rule of law.

For the purpose of this discussion, separation of powers is a constitutional principle intended to limit powers vested in an institution or person, especially key branches of the government: legislative (for example, the Legco), executive (Chief Executive and her cabinet) and judiciary (the courts). Separation of powers divides responsibilities among key branches of a government. It also restricts any one to exercise the core functions of another. Branches falling into this category include auditing (Audit Commission), electoral (Electoral Affairs Commission), prosecutorial (office of the Director of Public Prosecutions) and civil/public services related authorities or commissions.

The Secretary-General of the United Nations defines the rule of law stating, “the State itself, [is] accountable to laws that are publicly promulgated, equally enforced and independently adjudicated.” The rule of law needs to ensure “adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law [and] separation of powers…” With relation to separation of powers, “the principle of checks and balances is that each branch has power to limit or check the other two, which creates a balance between the three separate branches of the state. This principle induces one branch to prevent either of the other branches from becoming supreme...” Therefore, separation of powers is not a theory but a very practical concept for day to day functioning of governments. The intent of separation of powers is to prevent the concentration of power in one branch by providing checks and balances allowing of fairness, transparency, and accountability.

Why separation of powers? The objective is to prevent abuse of power. For example, when a single person, group or institution has got considerable amount of power, it is likely to be abused and thus can have harmful effects on the people. Therefore, through checks and balances key government institutions are prevented from abusing power vested in them. With relation to separation of powers, what is the actual practice that has been progressively developing in Hong Kong? What does the Basic Law say? What does the judiciary say? Johannes Chan, a legal scholar at the University of Hong Kong, said the Basic Law showed a clear intention to implement separation of powers. He also said that there could be a fundamental misunderstanding on the term by Beijing. It can be due to the clash between practices and values: rule by law in the PRC vs the rule of law in the HKSAR. So, this debate in fact goes back to the very principle Hong Kong Administration was once proudly using to promote Hong Kong as a competitive international financial hub: a city based on the rule of law. In June, Xinhua news agency quoted Secretary for Justice Teresa Cheng ensuring Hong Kong’s judicial independence in the context of implementation of the new National Security Law. Yes, judicial independence is an integral part of separation of powers and separation of powers an integral part of the rule of law.

Several former Chief Justices of Hong Kong have emphasized the importance of judicial independence as the core of separation of powers and the Basic Law set out principle of separation of powers. Thus, the discussion over separation of powers is more relevant in the context of the independence of the judiciary in Hong Kong. Independence of the judiciary is particularly relevant within the context of the large number of prosecutions against protesters and implementation of the new National Security Law in the HKSAR. It is through separation of powers you allow the judiciary to function independently. By stating the system is executive-led, are the leaders of Hong Kong trying to justify possible direct or indirect interference with the judiciary? When a court decides to allow a private prosecution, is the Justice Secretary interfering with the case in compliance with the principles of the rule of law? And Hong Kong also needs an independent Electoral Affairs Commission that is empowered to decide whether there is a need to postpone an election or not. Instead, what we see is the escalating intervention by the Chief Executive that undermines the role of such institutions. Thus, what you see is further decline of Hong Kong, decline of the rule of law in Hong Kong, from the top down.

Carrie Lam and Teresa Cheng’s claim that Hong Kong has no separation of powers but only an executive-led system is tantamount to announcing to the world the death of the rule of law in Hong Kong. By deleting terms like separation of powers from high school textbook, the administration is taking few steps backward while the whole world is trying to move forward. But this action and debate have inadvertently done a positive thing, especially among the young people. Until this incident, perhaps the young people did not pay particular attention to the concept of separation of powers, but from now on they may study this principle diligently. They may look beyond textbooks to learn more about this principle. By doing so, they may understand the importance of separation of powers better and contribute to advancing the rule of law in Hong Kong.

(Yan Kei, Advocate for criminal justice reforms)

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